Although it may be politically popular, the case is legally pathetic. Bragg is struggling to twist state laws to effectively prosecute a federal case long ago rejected by the Justice Department against Trump over his payment of “hush money” to former stripper Stormy Daniels. In 2018 (yes, that is how long this theory has been around), I wrote how difficult such a federal case would be under existing election laws. Now, six years later, the same theory may be shoehorned into a state claim.
It is extremely difficult to show that paying money to cover up an embarrassing affair was done for election purposes as opposed to an array of obvious other reasons, from protecting a celebrity’s reputation to preserving a marriage. That was demonstrated by the failed federal prosecution of former presidential candidate John Edwards on a much stronger charge of using campaign funds to cover up an affair.
In this case, Trump reportedly paid Daniels $130,000 in the fall of 2016 to cut off or at least reduce any public scandal. The Southern District of New York’s U.S. Attorney’s office had no love lost for Trump, pursuing him and his associates in myriad investigations, but it ultimately rejected a prosecution based on the election law violations. It was not alone: The Federal Election Commission (FEC) chair also expressed doubts about the theory.
Prosecutors working under Bragg’s predecessor, Cyrus Vance Jr., also reportedly rejected the viability of using a New York law to effectively charge a federal offense.
A Section 175 charge would normally be a misdemeanor. The only way to convert it into a Class E felony requires a showing that the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” That other crime would appear to be the federal election violations which the Justice Department previously declined to charge.
The linkage to a federal offense is critical for another reason: Bragg’s office ran out of time to prosecute this as a misdemeanor years ago; the statute of limitations is two years. Even if he shows this is a viable felony charge, the longer five-year limitation could be hard to establish.
Of course, none of these legalistic problems will be relevant in the coming frenzy. It will be a case that is nothing if not entertaining, one to which you can bring your popcorn — so long as you leave your principles behind.
Approved ~ FS
DGM